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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, November 2, 2023

Illinois County Has No Authority to Secede from Illinois According to the Attorney General

  Thursday, November 02, 2023    

The Illinois Attorney General doesn't issue very many general opinions (separate from the PAC opinions) but a recent opinion is worth a read as it involves an unusual issue - a county's secession from one state to an adjoining state.

At the request of the Jerseyville County Board, the County States Attorney requested an opinion from the Illinois Attorney General (AG) as to whether an Illinois county could secede from the State of Illinois and join the State of Missouri. According to the AG's opinion, the issue had arisen in connection with a discussion by the County Board about the placement of a referendum on the ballot to shift the border between Illinois and Missouri in order to relocate the Jerseyville County to the Missouri side.

The AG first reviewed the Illinois Constitution in connection with a county's non-home rule authority. While the AG acknowledged that the Illinois Constitution contains provisions for relocation of county borders, the AG found nothing that would authorize the relocation of county borders across state lines. Similarly, while the Counties Code discusses the transfer of territory between counties, those provisions relate to the transfer of territory within Illinois. The AG also found no authority in the Election Code to allow a county to secede from Illinois by referendum. Finally, the AG noted that secession could implicate various federal laws and the U.S. Constitution. 

In sum, the AG concluded that a non-home rule county does not have the authority to secede from Illinois in order to join Missouri. Ill. Att'y Op. 23-001.

  

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Wednesday, November 1, 2023

ICE Did Not Violate Federal FOIA in Redacting Records

  Wednesday, November 01, 2023    

A requestor filed several FOIA requests with United States Immigration and Customs Enforcement (ICE) under the federal FOIA statute, seeking records regarding his transfer from ICE custody to Indiana where he faced criminal charges. ICE produced certain records, but redacted (1) information protected by attorney-client, work product, or deliberative process privileges under FOIA exemptions; and (2) identifying information of government employees under other FOIA exemptions because disclosure would put employees at risk of harassment and serve no public benefit. The requestor sued ICE, alleging ICE’s redactions were improper. The district court ruled in favor of ICE, finding it properly redacted information. On appeal, the Seventh Circuit Court of Appeals also ruled in favor of ICE in Vidal-Martinez v. United States Department Of Homeland Security

First, the Seventh Circuit rejected the requester's argument that ICE could not rely on the attorney-client privilege to redact or withhold records because of the crime-fraud exception to the attorney-client privilege, finding no evidence to support the requestor’s claims that ICE engaged in any criminal conduct or sought to mislead the court.  

Second, the Seventh Circuit rejected the requestor’s petition for attorney’s fees, finding that ICE consistently maintained its intent to respond the FOIA requests both before and after the requestor sued, and any administrative delay in ICE responding to the FOIA requests did not trigger any award of attorney's fees under the federal FOIA statute.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Monday, October 30, 2023

11th Annual Local Government Law Institute - December 1st

  Monday, October 30, 2023    

Shout out to local government lawyers who follow Municipal Minute, don't forget to register for the IICLE Local Government Law Institute. This year's seminar takes place on Friday, December 1, 2023, and provides attendees with the opportunity attend in-person attendance at the UBS Tower in Chicago or by webcast. 

Here's a sneak peak of the sessions at this year's seminar:

  • Caselaw & Legislative Update
  • The First Amendment & Government Social Media Activities
  • Civil Rights: Supreme Court Shockwaves - 6 Months Later
  • Avoiding the Quagmire of Reasonable Accommodation Under the ADA: Municipal Best Practices
  • Lunch Panel: Advising Clients on Conflicts Issues
  • A Chat with the PAC
  • Representing Counties
  • Conflicts of Interest in Municipal Law (presented by the ARDC)

This seminar qualifies for 5.25 hours of general CLE, and 1 hour of Professional Responsibility CLE.

For more information, visit IICLE's website here.

  

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Thursday, October 26, 2023

Court Rejects Challenge to City's "Shared Housing" Ordinance

  Thursday, October 26, 2023    

The City of Chicago allows the owner of a two to four unit residential building to rent out a unit as a short term rental provided the building is the owner's primary residence. An owner who does not primarily reside in the building can request an "adjustment" from the City if the owner can establish certain factors. An owner of multiple residential buildings who received an adjustment for one building but was denied other adjustments in another building sued the City on several grounds, including arguing that the City ordinance was unconstitutional. The case made its way to the Appellate Court which ruled in favor of the City in Henderson v. City of Chicago.

The Appellate Court first rejected the owner's argument that the Ordinance was unconstitutional because it it required owners to provide sensitive or personal financial information in order to demonstrate a financial burden, in violation of the privacy clause of the Illinois Constitution. Second, the Court held that the Ordinance did not constitute an unreasonable property seizure under the federal or state constitutions, finding that the stated purpose of the Ordinance (to limit the number of shared housing units to reduce the burden or nuisance on neighboring residents) was a rational means to achieve the City's purpose. Third, the Court rejected the owner's argument that the investigation by the City to discover noncompliant rental listings was a warrantless search in violation of the constitution, finding that the owner did not meet his burden of showing how an electronic search by City investigators violated his constitutional rights. The Court also upheld the City's imposition of fines in the amount of $5,000 for the owner's failure or refusal to remove unregistered rental listings.

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Wednesday, October 25, 2023

7th Circuit Upholds Dismissal of Challenge to Demolition of Nuisance Structure

  Wednesday, October 25, 2023    

The Seventh Circuit Court of Appeals upheld the dismissal of a civil rights lawsuit against a municipality over the demolition of a public nuisance property. Willow Way, LLC v. Village of Lyons. 

After a real estate investment firm bought a dilapidated house and failed to make repairs to the property, the municipality sought to tear down the house as a nuisance. The municipality provided notice of the demolition to the investment firm and, after demolishing the house, sold the property at an auction to satisfy the municipality's lien for demolition expenses. The real estate investment firm sued the municipality claiming the demolition of the home was a taking and a violation of its substantive due process rights. The firm also raised an inverse condemnation claim under Illinois law. The district court ruled in favor of the municipality finding its demolition of the house as a public nuisance was not a due process violation and did not require compensation.

On appeal, the Seventh Circuit agreed with the dismissal, rejecting the real estate investment firm’s claims. First, the Court held there was no due process violation as federal law only requires property owners be proved fair notice and opportunity for a hearing to determine if the structure is a public nuisance. Since the municipality had provided prior notice of the condemnation to the real estate investment firm, and the firm failed to challenge the condemnation at a hearing, the Seventh Circuit found no due process violation. Next, the Court dismissed the inverse condemnation claim on jurisdictional grounds finding that the municipality was not liable for fluctuations in the market price of real estate or a decline in home value when the property was unoccupied and condemned as a public nuisance.  

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

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Tuesday, October 24, 2023

Quorum Forum Episode 76: Back to School at the APA-IL State Conference

  Tuesday, October 24, 2023    

Don't miss Quorum Forum's Episode 76: Back to School at the APA-IL State Conference where Ancel Glink attorneys engage conference attendees with recent land use and planning law cases and share their experiences attending and presenting at the conference.

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Monday, October 23, 2023

7th Circuit Dismisses City's Lawsuit Against Internet Streaming Services

  Monday, October 23, 2023    

In a recent decision, the Seventh Circuit Court of Appeals ruled against a municipality that had sued Netflix and other internet streaming services claiming the services were operating as unlicensed video service providers in violation of the Illinois Cable and Video Competition Law. City of East St. Louis v. Netflix.   

The city claimed the streaming services were "covered video service providers" operating without statewide authorization under the Illinois Cable and Video Competition Law (CVCL) and were required to pay a portion of their revenue to each municipality in Illinois. The city also raised common law trespass and municipal ordinance violation claims. The district court dismissed the city’s lawsuit, ruling the CVCL only allowed the state Attorney General to sue entities alleged to be operating without the required statewide authorization.

The city appealed, and the Seventh Circuit upheld the dismissal, rejecting the city’s claims. First, the Court held that internet streaming services were exempt from the CVCL’s definition of video service, and that content streamed over the internet is not covered under the CVCL’s regulatory scheme. Second, the Court held that transmitting streaming content through wires that crossed city-owned land was not a trespass. Finally, the Court held that internet streaming services did not violate a city ordinance prohibiting the re-sale of cable television services as the streaming services provided different services than traditional cable television providers. 

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

  

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Thursday, October 19, 2023

Appellate Court Upholds Attorneys Fee Award in FOIA Challenge

  Thursday, October 19, 2023    

After a City denied a FOIA request asking for traffic and environmental studies related to a development project, the requestor sued. Two weeks after the requester filed the lawsuit, the City provided the records to the requester. The circuit court held the case was "moot" since the City disclosed the responsive records. However, the court did award the requester attorneys fees, finding that the requestor had “prevailed” in his FOIA case because the City provided the records. On appeal, the City argued that requestor was not entitled to attorney fees and alternatively, that the fee award should be reduced. 

In Kieken v. City of Joliet, the Third District Appellate Court upheld the circuit court's award of attorneys fees. The Third District acknowledged that the Appellate Districts are divided on the issue of when a plaintiff has "prevailed" in a FOIA lawsuit to trigger FOIA’s attorneys' fee provision. The Third District noted that the Second District holds that a plaintiff is entitled to attorneys' fees under 11(i) only if there is a court order in the plaintiff's favor in the FOIA lawsuit. So, if requested records are voluntarily provided by the public body while the lawsuit is still pending, a plaintiff cannot have "prevailed" for purposes of an attorneys' fee award under FOIA. On the other side, the First, Fourth, and Fifth Districts all hold that the attorneys' fee provision in FOIA can be triggered even without a court order, meaning a plaintiff can "prevail" in their FOIA lawsuit even if the public body voluntarily provides the records while litigation is pending.

In this case, the Third District joined the First, Fourth, and Fifth Districts, holding that a court order is not required for a plaintiff to "prevail." The Third District adopted a test requiring a plaintiff to show that: (1) plaintiff filed a lawsuit against a public entity, (2) the entity produced the requested documents, (3) the lawsuit caused the documents’ production, and (4) the lawsuit was reasonably necessary to obtain those documents. In this case, the Third District held that the requestor’s lawsuit was reasonably necessary to obtain the requested documents, and the circuit court did not abuse its discretion in awarding attorneys’ fees to the requestor.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Tuesday, October 3, 2023

Court Dismisses Tort Claims Relating to Hotel Redevelopment

  Tuesday, October 03, 2023    

An Appellate Court dismissed a lawsuit against a municipality relating to a hotel redevelopment project. Matthews v. City of Peoria.

Plaintiffs filed a lawsuit against the city claiming the city interfered with a contractual relationship and a business expectancy relating to a proposed redevelopment of a hotel and adjacent properties. The complaint alleged that the city's requests for more information about the project and its alleged threats to discontinue public financing resulted in the loss of financing for the project and ultimately foreclosure and the bankruptcy of the hotel owners, resulting in plaintiffs losing their interest in the hotel project and opportunity for development fees. 

The city filed a motion to dismiss the two tort claims on the basis that the Tort Immunity Act applied and that the complaint failed to state a cause of action. The trial court dismissed the two counts, finding they were not timely filed within the one year statute of limitations under the Tort Immunity Act. Plaintiffs appealed, and the Appellate Court upheld the dismissal but on a different basis, finding that the complaint did not contain sufficient factual allegations to support these two claims. With respect to the tortious interference with contracts, the Appellate Court held that plaintiffs were not parties to the contracts they claimed the city breached. And as to the tortious interference with business relationships, the Court held that the complaint failed to include facts to support a reasonable expectancy of plaintiffs to enter into a business relationship. 

  

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Thursday, September 28, 2023

Court Upholds Ordinance Imposing Fees for Towing and Impoundment

  Thursday, September 28, 2023    

In Leehy v. City of Carbondale, an Appellate Court upheld a City ordinance requiring the payment of administrative fees for costs related to the towing and impoundment of a vehicle involved in certain crimes. Plaintiffs filed a lawsuit against the City to challenge the fees, claiming they were unconstitutional and that the City was reimbursed twice for the same costs under the ordinance and the Illinois Criminal and Traffic Assessment Act (Act). The trial court found that the fees were reasonably related to the costs incurred by the City and were not duplicative of the statutory fines authorized by the Act which related to DUI enforcement related activities like police vehicles and breathalyzers and not intended to reimburse the City for incurred costs as the ordinance fees provided.

Plaintiffs appealed and the Appellate Court upheld the ruling in favor of the City. The Appellate Court held that the Act authorizes a punitive fine assessed to individuals convicted or who plead guilty to a misdemeanor DUI. In contrast, the City ordinance authorizes imposition of a fee designed to recoup incurred costs of the City and the purposes and intent of the Act and ordinance were not the same. The Appellate Court also found the City's ordinance to be constitutional as it was rationally related to a legitimate governmental interest and was not arbitrary nor discriminatory. The Court noted that the City's fee does not need to represent the exact costs incurred but must at least relate to those actual costs. The court pointed to the fact that Plaintiffs failed to prove there was no reasonable relation between the fee and cost of service as well as that Illinois courts have upheld fees over five times greater than the actual cost, referencing A&H Vending Service, Inc. v. Village of Schaumburg, 168 Ill. App. 3d 61 (1988).

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

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Wednesday, September 27, 2023

Court Rejects Lawsuit Challenging City Officials' Social Media Posts

  Wednesday, September 27, 2023    

A resident (plaintiff) filed a lawsuit against a village, certain village officials, and a resident seeking damages for a variety of claims, including invasion of privacy, false light, disclosure of private facts, intrusion upon seclusion, and intentional infliction of emotional distress. The complaint claimed that the defendants posted various false statements about her on social media. The plaintiff also claimed that the defendants had obtained police reports about her and posted private medical information about her on social media. The plaintiff also alleged that the actions by defendant were in retaliation for her vocal comments criticizing one of the defendants fitness to serve as an elected official. One of the defendants settled with the plaintiff and the trial court dismissed the remainder of her case and rejected plaintiff's motion for sanctions, and she appealed to the Illinois Appellate Court. Williams v. Stuckly.

First, the Appellate Court rejected plaintiff's privacy and intrusion upon seclusion claims, finding that her allegations related to the publication of records that had been obtained through lawful means (FOIA) and that there was no evidence to support an expectation of privacy in the police reports disclosed through FOIA.

Second, the Appellate Court determined that there were insufficient factual allegations to support her false light claim and those that were included in the complaint were too vague and unclear.

Third, the Appellate Court upheld the dismissal of her conspiracy claim since that claim requires an underlying cause of action but all of her underlying claims had been dismissed. 

Finally, the Appellate Court determined that the plaintiff's motion for sanctions against one of the defendants was not well founded where plaintiff was seeking sanctions against a defendant despite the dismissal of the plaintiff's entire case. 

In sum, the Appellate Court upheld the trial court's dismissal with prejudice, finding that the plaintiff had been given three opportunities to plead an adequate complaint and had failed to do so.



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Tuesday, September 26, 2023

City Did Not Own Property Until Condemnation Proceedings Were Complete

  Tuesday, September 26, 2023    

In 2005, a city filed a lawsuit to acquire a low-income apartment complex through eminent domain proceedings. The case proceeded for 12 years, and the apartment complex continued to operate and the owners continued to pay property taxes. In 2018 (a year after the city acquired title to the property), the previous owners filed a tax objection complaint seeking a refund of over $6 million in property taxes they paid for the 12 year period between the filing of the eminent domain complaint and the date the city acquired the property. The trial court dismissed the case but the appellate court reversed and ruled in the property owners' favor, finding that the city "retroactively" owned the property from the date it filed its complaint and the property owners were entitled to a refund. That ruling was then appealed to the Illinois Supreme Court. 

On appeal, the Illinois Supreme Court reversed the appellate court and held that the city did not become the owner of the property until the condemnation proceedings were complete. The Court overruled a previous case (City of Chicago v. McCausland) that held that a government's title "related back" to the filing of the complaint for purpose of determining who is responsible for liens that had been filed after a condemnation complaint but before the condemnation proceedings were complete. As a result, the Court held that the previous property owners were responsible for the property taxes during the 12 year period between the filing of the complaint and the completion of the condemnation proceedings as they were the lawful owners of the property until the city acquired title. MB Financial Bank, N.A. v. Brophy, 2023 IL 128252.


  

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